Yu Feng Pty Ltd v Brisbane City Council
[2006] QPEC 72
•18/07/2006
[2006] QPEC 072
PLANNING AND ENVIRONMENT COURT
JUDGE RACKEMANN
P & E Appeal No. BD187 of 2006
| YU FENG PTY LTD | Appellant |
| and | |
| BRISBANE CITY COUNCIL and ROSS NEILSON PROPERTIES PTY LTD and STATE OF QUEENSLAND P & E Appeal No BD294 of 2006 MULTIPLEX DEVELOPMENTS AUSTRALIA PTY LTD (ACN 109 219 810) and BRISBANE CITY COUNCIL and ROSS NEILSON PROPERTIES PTY LTD and STATE OF QUEENSLAND P & E Appeal No BD 4777 of 2005 ROSS NEILSON PROPERTIES PTY LTD and BRISBANE CITY COUNCIL and STATE OF QUEENSLAND and YU FENG PTY LTD & BUCKLEY VANN PTY LTD and MULTIPLEX DEVELOPMENTS AUSTRALIA PTY LTD (ACN 109 219 810) and C & B CONSULTANTS PTY LTD | Respondent First Co-Respondent Second Co-Respondent Appellant Respondent Co-Respondent Co-Respondent by Election Appellant Respondent Co-Respondent First Co-Respondents by Election Second Co-Respondent by Election Third Co-Respondent by Election |
BRISBANE
..DATE 18/07/2006
ORDER
HIS HONOUR: This is an application, by the appellant, for leave to raise additional issues in the appeal. The additional issues are set out in the application in pending proceedings and allege an insufficiency of on-site car parking and an unacceptable impact on the safety and amenity of the residents of Cutbush Road. The proposed additional issues are adequately particularised in the application document.
This appeal, as is usually the case, has been the subject of directions given by the Court. Insofar as the notification and identification of issues is concerned, the Court made orders on the 3rd of March 2006. Those orders identified the issues in dispute by reference to paragraphs 1 to 4 of the notice of appeal, together with any additional issues notified by the 17th of March 2006 and any particulars provided by the 7th of April 2006.
The notification of issues at this stage flies in the face of the earlier directions of the Court and explains the appellant's application for leave. The issues sought to be raised are new issues.
It was pointed out, on behalf of the appellant, that the existing issues, as particularised, make reference to
off-street parking in a more general way and that the appellant in another submitter appeal has raised an issue with respect to Cutbush Road.
It seems to me however, that a person reading the issues in the subject appeal, as particularised, would not have been alerted to an issue as proposed with respect to car parking. The issue in respect of Cutbush Road has not previously been raised in this appeal and is somewhat differently expressed to the issue raised by the other objector appellant.
The solicitor who has the conduct of the matter for the appellant swore an affidavit and was subject to some
cross-examination on the hearing of this application. Her evidence was to the effect that it was not until June of this year that the traffic engineer, engaged by her client, drew to her attention the need for the notification of additional issues. Her evidence was that she did give consideration, prior to the 17th of March 2006, in relation to whether additional issues needed to be notified, but cannot specifically recall what communication she had with the traffic engineer at that time.
The matter of the additional issues was the subject of some controversy when, in the course of the meeting of experts, there was, quite understandably, a refusal to enter upon discussion of matters which had not then been identified as issues in the appeal.
The meeting among the experts concerning traffic has not yet been finalised nor has a concluded joint report been produced. The reason for that lies in matters beyond simply the proposed additional issues.
The hearing of the appeal is currently anticipated to take place in September and the matter is to be mentioned at the callover for that sittings.
That the notification of issues at this time departs from the Court-ordered timetable and does so to a significant extent is, of course, relevant, but is not necessarily determinative.
The issues which are now sought to be raised have been articulated in a way which appears to give sufficient particularity. One would ordinarily think, given the time which is still available prior to the hearing, that they could be investigated within the available time. Certainly, the first co-respondent, who opposes the application, did not file any material to suggest that was not the case. It could not be said, at this stage, that an adjournment of the appeal would be the necessary consequence of allowing the notice of appeal to be amended to include the further issues at this stage.
There was no other specific prejudice, in terms of the ability to meet the case, that was pointed to on behalf of the first co-respondent.
The orders of the Court are, of course, serious and ought not be lightly departed from. Nor should the Court lightly sanction a departure from them. However, as has been pointed out a number of times, case management is not an end in itself and there is the opportunity to apply for orders which, in effect, permit departures from a timetable earlier ordered.
I am mindful that the jurisdiction which this Court exercises is not simply a civil jurisdiction determining causes of action which are owned by the parties before it. While the parties to the appeal are those which are most directly interested in the subject matter of the appeal, nevertheless, the matters with which the Court deals are matters of some wider interest and involve the acceptability of development and its impact in the community. That requires some consideration in deciding whether to shut a party out from raising issues such as the sufficiency of car-parking and the effect that a development may have on safety and amenity.
It seems to me, in the circumstances, that whilst the issues are being raised late, apparently as a consequence of the solicitor for the appellant only recently having been informed by the traffic engineer that such issues needed to be raised, that it would be appropriate to exercise my discretion by allowing the application, so as to permit the issues to be raised and considered by the Court in the context of the merits review of the application the subject of the appeal.
...
HIS HONOUR: The first co-respondents seeks its costs of the application. It also seeks an order that the costs relating to the new issues be reserved. The second of those orders is not opposed and I propose to make an order reserving those costs.
As to the costs of this application, those costs, it was said, are within the Court's jurisdiction to award by reason of section 4.1.23(e) of the IPA on the basis that the appellant defaulted in the Court's procedural requirements in not notifying the additional issues within the time ordered.
Senior counsel for the appellant conceded that there was jurisdiction to make a limited costs order, but submitted that such costs ought not include the costs involved in resisting his client's application which, he said, was not caused by the default in the Court's procedural requirements. In my view, that is taking an unnecessarily narrow view of the Court's jurisdiction to award costs in the circumstances.
It seems to me that the application for the Court's indulgence has arisen by reason of the default of the Court's procedural requirements and that the first co-respondent has incurred costs in responding to that application. In my view, that is sufficient to raise the Court's jurisdiction to order costs of the application.
That the first co-respondent was unsuccessful in opposing the application, whilst relevant, does not necessarily lead to the conclusion that the discretion to award costs should be exercised in a way which is adverse to it. It must be remembered that it was the appellant who failed to comply with the procedural requirements and was the one who was seeking an indulgence from the Court.
It was pointed out, on behalf of the appellant, that it is not entirely unusual for submitter appellants in this jurisdiction to realise, as case preparation develops, that their issues have not been properly formulated in all respects. It was submitted that it would be contrary to the public interest if the issues could not be set right without the fear of a costs sanction.
While I appreciate that submission, it is certainly not my view that a cost order would necessarily follow whenever issues were sought to be modified outside the Court timetable. In this case however, it seems to me that it would be a proper occasion upon which to exercise the discretion in favour an order for costs.
The issues which are now sought to be raised relate to traffic engineering matters, particularly an insufficiency of car parking and the effect of the proposed development on safety and amenity of Cutbush Road. The appellant is a commercial entity which has had the benefit of traffic consultants for a considerable period of time, dating back to prior to the date for the notification of issues. Had there been any interest in matters of this nature, they are matters which could have been, and should have been, investigated at the time and in respect of which the appellant had a relevant expert engaged, who could have advised in that regard, so that the timetable was met.
In the circumstances, I am minded to exercise my discretion in favour of order for costs. Accordingly, I order that the appellant pay the first co-respondent's costs of and incidental to the application. I further order that the costs relating to the additional issues be reserved.
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